Citation Nr: 21067040 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-23 031 DATE: November 3, 2021 ORDER A 50 percent rating for migraine headaches from February 28, 2011, but no higher, is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain, is granted. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected irritable bowel syndrome (IBS), is granted. REMANDED An initial rating in excess of 10 percent for allergic rhinitis is remanded. Entitlement to service connection for a right nostril disorder is remanded. Entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain, is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. In an October 2004 rating decision, the claim for entitlement to service connection for a right wrist disorder, now claimed as carpal tunnel syndrome and right wrist strain was denied; new and material evidence was not submitted within one year of notice of that decision, and a notice of disagreement (NOD) was not submitted within one year. 3. The evidence added to the record since the October 2004 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain. 4. The Veteran's hemorrhoids are etiologically related to another service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating, the highest schedular rating, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. The October 2004 rating decision that denied the Veteran's claim for entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 3. As the evidence received after the October 2004 rating decision is new and material, the requirements to reopen the claim for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 4. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to September 2003. These matters return to the Board of Veterans' Appeals (Board) following the issuance of a May 2020 Board decision which in part denied and dismissed the claims now on appeal. The Court of Appeals for Veteran's Claims (CAVC) issued a Joint Motion for Partial Remand in June 2021 which found that the claims denied in the May 2020 Board decision should be reevaluated by the Board on remand, and that the claims that were dismissed in the same decision were not properly done so. The Veteran testified before the undersigned Veterans Law Judge in February 2020 at a Board hearing. A transcript is of record. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased rating for migraine headaches from February 28, 2011 The Veteran is seeking a higher rating for her migraine headaches during the period since February 28, 2011. Specifically, she is seeking a maximum rating of 50 percent for the disability as she claims that the currently assigned 30 percent rating does not adequately contemplate the severity of her disability during the period on appeal. The Veteran's migraines are rated under Diagnostic Code (DC) 8100. Under that Diagnostic Code, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that the rating criteria do not define the term "prostrating." Clinically, "prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). After a review of the evidence of record, the Board finds that a 50 percent rating, the maximum available under DC 8100, is warranted during the period on appeal. During the period on appeal, the Veteran was provided with VA medical examinations to determine the nature and severity of her migraines in April 2011, May 2014, and November 2017. At the April 2011 examination, the Veteran reported having prostrating headaches two to three times a week resulting in her needing to go to a quiet room. She further indicated that during these episodes, she employed the use of an ice pack and several medications including prophylactic headache medication. She also indicated that she experiences lower grade headaches which can last for up to two weeks at a time. The examiner opined that the Veteran's headaches had worsened in their severity and that the Veteran had developed occipital neuralgia as a symptom due to her migraines. The examiner also noted that the Veteran required more medications, including nerve block injections. Next, the Veteran was evaluated in May 2014 with a disability benefits questionnaire. The Veteran indicated that she experiences severe migraines which cause her to stay home from work and had resulted in one to two weeks of work lost in the preceding year. The examiner noted that the Veteran used Imitrex (during migraine onset), Nortriptyline (daily), a daily magnesium supplement, and a Riboflavin BID supplement for the treatment of her migraines. The examiner noted that the Veteran's headache pain lasts two to three days at a time, and that she experiences characteristic prostrating attacks less than once every two months. The examiner also declined to endorse any additional non-headache symptoms associated with headaches. The examiner did not reference the prior VA medical examination from April 2011. Finally, the Veteran was evaluated at a November 2017 VA examination. The Veteran reported that had been receiving Botox injections, and acupuncture to treat her migraines. She also indicated that she employed a Cefaly stimulator to help treat her migraines, and it had helped to reduce her headache severity. However, the Veteran also noted that she still had one to two migraines a month lasting three to five hours and that they result in dizziness and motion sickness. The examiner recorded that the Veteran's migraines resulted in pulsating or throbbing head pain, nausea, vomiting, sensitivity to light, and changes in vision. While the examiner indicated that the Veteran's migraines could be considered characteristic and prostrating, that they were not productive of severe economic inadaptability. In discussing the functional impact of the Veteran's migraines, the examiner noted that the Veteran had lost between zero and one weeks of work in the prior 12 months and that her concentration is decreased during the occurrence of her migraines. However, the examiner did not discuss the above-mentioned symptoms of nausea, sensitivity to light, of changes in vision impact on the Veteran's ability to function during a migraine. The Veteran's medical records from the period on appeal indicate a cycle of worsening migraines and somewhat successful treatment, with new methods being employed and working for a time to reduce severity only for the Veteran's symptoms to again worsen. The Veteran's medical records also note the occurrence of migraine related symptoms, such as occipital neuralgia, with regularity. Additionally, the Veteran submitted an opinion from a private physician in February 2020, wherein they indicated that the Veteran experiences severe migraines four to eight times a month with pain between a three and a ten, lasting for minutes to hours. The private physician indicated that the Veteran's migraines had no specific triggers upon which she could avoid or plan around. It was noted that the Veteran needed to take breaks during her time working about four times a month after which she returned when the migraine abated. However, the physician also noted that the Veteran needed to leave work to return home another three to four times each month due to her migraines. The Board finds the Veteran's lay statements regarding the severity of her headache symptoms to be credible. She is competent to report symptoms that he can personally observe and feel, such as pain and weakness. See Layno v. Brown, 6 Vat. App. 465 (1994). At her Board hearing, the Veteran reported that she missed about 14 days of work a month due to her migraines. She further indicated that one to two times a week her migraines cause her to be bed ridden, and otherwise that her migraines interfere with her normal functioning, including taking care of her children. The Board notes that the May 2014 and November 2017 medical examinations are not entirely supportive of her claim for a higher rating during the period on appeal. However, neither examination considered the Veteran's non-migraine symptoms repeatedly reported by the Veteran and endorsed by other treating physicians, such as occipital neuralgia, dizziness, nausea, changes in vision, and sensitivity to light. Thus, the Board finds that they should be afforded less probative weight than the positive evidence of record, including the Veteran's lay statements and testimony, her medical records, and the opinion from the private physician. With all the evidence considered, the Board finds that the Veteran's migraines are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during the period on appeal. The criteria for a 50 percent rating for the Veteran's migraine disability have been met and the claim is granted. As a 50 percent rating is the highest rating allowed under Diagnostic Code 8100, a higher rating for the Veteran's headache disability is not allowed. Moreover, there are no other diagnostic codes that are applicable. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. New and Material Evidence For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless "patently incredible." See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material has been submitted to reopen the claim of entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain In this case the Veteran is claiming entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain. The Veteran's previous claim for entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain was previously denied by the Regional Office (RO) in October 2004 on the basis that the evidence of record including did not demonstrate that the Veteran had an event or injury in service that could be shown to have caused her claimed right wrist disorder. The Veteran did not appeal this decision, nor did she submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011); §§ 3.156, 19.52. This represents the last final denial of the claim. After a review of the evidence submitted since the October 2004 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including new medical treatment records, which contain a diagnosis of carpel tunnel syndrome (CTS). Additionally, statements provided by the Veteran indicate that she has been diagnosed with CTS. Further, she has alleged that the duties involved with her MOS in service (a unit supply specialist), may have led to the development of her claimed disorder due to excessive typing. Additionally, not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, but it is also "material," as it relates to an unestablished fact necessary to support the claim. Namely, the evidence indicates that there may be a nexus between this disorder and the Veteran's active-duty service. Therefore, the claim should be reopened on this basis. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 3. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected irritable bowel syndrome (IBS) The Veteran is seeking service connection for hemorrhoids. She specifically contends that she began to experience hemorrhoids while in service and/or that they are secondarily related to her service-connected IBS. After a review of the record, the Board finds that service-connection is warranted. As an initial matter, the Veteran's service treatment records do not indicate the presence of this disorder while on active duty. In fact, the Veteran did not indicate any history of hemorrhoids at her July 2003 separation examination. The first indication of hemorrhoids in the Veteran's post-service medical records is in 2007, four years following her separation from service. Thus, there is no evidence of continuity of symptoms. The Veteran was provided VA examinations in May 2014 and August 2020. In both examinations, the examiners noted that there was no evidence to indicate the presence of hemorrhoids during the Veteran's active-duty service. It was noted by both examiners that hemorrhoids were not documented in the Veteran's medical records prior to 2007. Additionally, both examiners noted that the Veteran's hemorrhoids could not be caused directly via her IBS. The examiners noted that the two disorders were not medically related. However, the August 2020 examiner noted that they determined that the Veteran's hemorrhoids were at least as likely as not aggravated beyond their natural progression by the Veteran's IBS and noted that in a submitted medical treatise, it was suggested that IBS could aggravate hemorrhoids due to straining. Given the positive opinion regarding the aggravation of the Veteran's hemorrhoids by her service-connected IBS from the August 2020 examiner, the Board finds that service connection should be granted for her hemorrhoids. Thus, resolving all doubt in the Veteran's favor, the Board finds that the Veteran has a current hemorrhoid disorder that is attributable to service via another service-connected disability. See Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Accordingly, the claim is granted. REASONS FOR REMAND 1. An initial rating in excess of 10 percent for allergic rhinitis is remanded. 2. Entitlement to service connection for a right nostril disorder is remanded. 3. Entitlement to service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain, is remanded. 4. Entitlement to service-connection for a low back disorder is remanded. The Veteran is seeking an initial rating in excess of 10 percent for allergic rhinitis, as well as service connection for a right wrist disorder, claimed as carpal tunnel syndrome and right wrist strain, and for a right nostril disorder. The Board finds that additional development is necessary and that these claims should be remanded. Allergic Rhinitis The Veteran was last afforded a VA examination for her allergic rhinitis in January 2015, almost seven years ago. The Board determines that a new examination is necessary to evaluate the current severity of her disability. Right Nostril Disorder In the Veteran's January 2015 examination for her allergic rhinitis, the examiner noted that she had nasal mucosa erythematous. While this is not a separate disorder, it is typically a sign of an underlying condition. As such, the Board finds that a remand is necessary to determine if this is simply a facet of the Veteran's allergic rhinitis, or the result of a separate disorder. Moreover, given the location of this disorder, it could be considered to be inextricably intertwined with her allergic rhinitis. Right Wrist Disorder As discussed above, the Veteran's claim for service connection for a right wrist disorder has been reopened due to the diagnosis of carpel tunnel syndrome in conjunction with her competent testimony regarding the potential nexus of her claimed disorder to service. To date, she has not received a VA examination for her claimed right wrist disorder. The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a remand to obtain an examination is warranted to determine the nature and etiology of any right wrist disorder. Low Back Disorder In February 2020 the RO requested information from the Veteran so that records from private treatment providers could be obtained and considered in her claims. The request included information pertaining to Blue River Chiropractic, whereat the Veteran stated that she had received treatment for her back since at least 2008. In a March 2020 statement submitted by the Veteran, she provided the contact information for Blue River Chiropractic and the specific physician who had provided the treatment. It appears that the RO attempted to contact Blue River Chiropractic in February 2020, prior to the Veteran's March 2020 letter, which included contact information. The RO records indicate that they attempted to call Blue River Chiropractic but that they failed to speak with anyone, and were not able to leave a message, it is noted that a fax was sent. However, this took place before the Veteran submitted what was perhaps more correct contact information, including that of her specific physician. Moreover, the RO never attempted to follow up with Blue River Chiropractic following their fax. It is not clear that the RO was confident in this attempt to seek records given that the Veteran was sent a letter by the RO requesting information regarding the provider. Thus, remand is necessary so that the RO may attempt to obtain these records. The matters are REMANDED for the following action: 1. The Regional Office (RO) should invite the Veteran to submit any additional evidence in support of her claims. 2. The RO should obtain any and all available records from any private treatment provider or facility where the Veteran has received treatment. Specifically, the RO is asked to make as many attempts as possible to seek records from 2008 to 2012 from Blue River Chiropractic and the physician noted in the Veteran's March 2020 statement. If those records cannot be obtained, the RO should make a specific note of this and associate it with the Veteran's claims file. 3. Schedule the Veteran for an examination with an appropriate clinician to evaluate the current severity of her allergic rhinitis, and the nature and etiology of any right nostril disorder. The examiner should rule in or rule out any diagnosable right nostril disorder. If a diagnosis for any right wrist disorder is endorsed, the examiner should provide an etiological opinion as to whether or not the diagnosed disorder(s) are at least as likely as not (a 50 percent or greater probability) related to the Veteran's active-duty service, or another service-connected disability. The entire claims file should be made available to the examiner and they should complete a review of it. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. All opinions must be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, the examiner should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule the Veteran for an examination with an appropriate clinician to evaluate the etiology of her claimed right wrist disorder. The examiner should rule in or rule out any diagnosable right wrist disorder. If no diagnosis is endorsed for the Veteran's right wrist, the examiners should provide an etiological opinion as to whether or not the claimed disorder causes pain with functional limitation, and if so, if the pain is etiologically related to the Veteran's period of service If a diagnosis for any right wrist disorder is endorsed, the examiner should provide an etiological opinion as to whether or not the diagnosed disorder(s) are at least as likely as not (a 50 percent or greater probability) related to the Veteran's active-duty service, including as due to her duties as a unit supply specialist. The entire claims file should be made available to the examiner and they should complete a review of it. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. All opinions must be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, the examiner should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor